OF SHEARER & SONS v. Cincinnati Marine Service, Inc.

Decision Date31 May 1960
Docket NumberNo. 13949.,13949.
Citation279 F.2d 68
PartiesO. F. SHEARER & SONS, Appellant, v. CINCINNATI MARINE SERVICE, INC., Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Robert T. Keeler, Cincinnati, Ohio (Nicholas L. White, Cincinnati, Ohio, on the brief), for appellant.

Philip S. Olinger, Cincinnati, Ohio (Earl T. Barnes, Cincinnati, Ohio, on the brief), for appellee.

Before SIMONS, POPE and O'SULLIVAN, Circuit Judges.

POPE, Circuit Judge.

Appellant, libellant below, is a partnership which owned and towed barges on the Ohio River. Appellee-respondent is a corporation which owns and manages a harbor in the Cincinnati basin area of the Ohio River, for the purpose of loading, unloading and storing barges and assembling tows.

On January 31, 1956, four empty barges belonging to libellant were left at respondent's landing and were tied off alongside of 15 other barges thereby creating a fleet of nineteen empty barges. Early the following morning the entire fleet of empty barges broke loose from their moorings, and with the landing float to which they were attached they were cast adrift. One of libellant's four barges, known as barge OFS 195, was damaged prior to its recovery. This suit in admiralty was brought to recover that damage. The appeal is from a judgment for respondent.

In seeking recovery libellant proceeded upon the theory that respondent, as bailee of these barges, was under a duty to exercise reasonable care for their safety, maintenance and protection; that proof of the delivery of barge OFS 195 in good condition, and its return in a damaged condition, gave rise to "a presumption of fault on the part of the appellee which the latter had to meet"; that the "burden of going forward with the evidence shifted to appellee". It asserts that appellee failed "to rebut the presumption of its negligence", hence that appellant should have had judgment. It further asserted that respondent was guilty of negligence in certain specified respects and that this negligence caused the damage complained of.1

The trial court found that what caused the barges to be cast adrift was that the fleet of barges "was struck by a drift pile, floating down the river", and that this was "an unexpected event which could not have been anticipated." It found that respondent's methods of securing the fleet to the shore "were customary under the circumstances," and that respondent "took the precautions common to the industry" and that there was no evidence of "other or further precautions which could or should have been taken." Accordingly, the court found respondent not negligent.

The evidence clearly sustains the finding that it was floating drift pile that carried away the barges. The river had been rising and had reached an "open river" condition; that is to say, without control of locks or dams. It had risen some 10 feet in the 48 hours prior to the time the O.F.S. barges were tied up and it continued to rise during the night following. On the evening before the break-away respondent's chief officer gave orders to his men to narrow down the fleet of 19 empty barges for the purpose of keeping the outside barges away from the current and its driftwood. At the time of the accident this fleet, including the landing float, was four barges in length and five in width, extending 130 feet from shore. The current, and the flow of driftwood, usually ran about 200 feet offshore. It would appear therefore that the outer empty barges were about 70 feet from the main current.

Upstream, and some 75 to 100 feet distant from the fleet of empty barges, a fleet of nine loaded barges was tied. Downstream, below the empty barge fleet, was another fleet of four loaded barges. The loaded barges lay some 6 to 7 feet deeper in the water than did the empty ones.

No one who testified saw the fleet of empty barges carried away. It was shown that shortly before this happened a very large body of floating drift was coming downstream toward respondent's landing. Beatty, who was respondent's president and general manager, checked the barges and floats shortly after 6 P. M. on the evening of January 31. The next time he saw the fleet of empty barges was about 5:30 the next morning when he was called on the telephone by one of his men at the landing and was informed that the empty fleet broke loose. Beatty laid down the telephone, stepped out on his front porch from which he had a view of the river, and saw the middle fleet of empty barges and the four loaded barges of the lower fleet some 1200 feet down the river from where they had been moored.

The most significant evidence that the barges were carried away when struck by floating driftwood was the fact that when the barges were recovered downstream there was a mass of debris and driftwood under the sections of the fleet then recovered. Only with considerable difficulty could this be shaken loose. In the midst of some of this debris there was found a white oil drum. Such a white oil drum had been seen on the large drift pile as it floated downstream above respondent's harbor. And while the upper fleet of nine loaded barges was not dislodged, there was some driftwood on the edge of the two lower outermost barges.2

Although the evidence thus sustains the finding that it was the drift pile that struck and carried away the barges, the other findings that there was no evidence of further precautions that could have been taken, that the striking of the fleet was unexpected, and there was no negligence, require more scrutiny; for there was definite evidence of negligence, and a significant failure to account for respondent's actions, or failure to act, at a critical time just prior to the breakaway.

Respondent had three tugs, one of 300 horsepower, one of 490 horsepower, and one of 550 horsepower. During the early morning of February 1, while it was still dark, the second of these, in charge of respondent's pilot Roberts, was proceeding upstream headed for Coal Haven, about four miles above respondent's landing. At that landing respondent had a main landing boat, equipped with office and living quarters for employees. The men on watch were not allowed to leave the boat.

There were at least three men on watch at the landing at the time Roberts was proceeding upstream. They were Sant and Lawrence, both of whom had authority to give orders, and Sivasky. Lawrence was in charge of the night crew; Sant was the night dispatcher; Lancaster, a pilot employee, lived up the hill above the harbor boat. Later, when Lancaster was called by telephone, he was still asleep but he reached his tug in "a very few seconds." Beatty was similarly within call.

As Roberts proceeded upstream, at the time mentioned, his deckhand called his attention to what was first thought to be some loose barges coming toward them down the river. They were then about a mile and a half or two miles upstream from respondent's landing. They flashed a light on the object and then saw it was a drift pile. It was "a pretty large one". On it they saw a white oil drum. Roberts, who had many years experience on the river, and as a harbor pilot, testified that he had never seen a drift pile the size of that one. At any rate, Roberts was apparently aware that it presented potential danger to the landing for when he saw it he radioed in to the landing and talked to Lawrence and told him "to be on the lookout for this drift pile. * * * I told him it was a big one." This was 30 or 35 minutes before the barges broke away.

It is thus obvious that a knowledge of what respondent's employees did, or failed to do — the choices they made, in this 30 minutes is vital to a determination as to whether respondent did or did not exercise care in the protection of the barges — for during that period respondent's employees then on duty at the landing knew that a pile of driftwood was coming — and that it was a big one. When Lawrence got that call he must have known that danger was imminent — otherwise there would have been no point in calling him.

There was something else that must have been known to the men then present for other witnesses who were called knew about it and explained it. That is, that the upper fleet of loaded barges was available as an effective barrier to any drift. As these loaded barges were tied they would "curve out on the tail end". This served the purpose of causing driftwood that came down alongside the loaded barges to "sheer off of those and go around the empty fleet."

It is plain that this drift pile was able to strike the empty barges, go under them, and carry them away, because the loaded fleet was anchored some 75 to 100 feet above and away from the empty barges. This gap between them was to leave a passageway for the tugs to go in behind the upper fleet of loaded barges, where they were kept. The opening was such as to permit the driftwood, when it came, to strike the empty barges at this gap.

Again, it will be recalled that the big drift, when it did strike, apparently hit the lower two of the loaded barges, but while it left debris on the sides of these barges, it did not go under them for they sat some 6 feet deeper in the water than did the empty barges. It must also be noted that two of the tugs, one of 300 horsepower, and one of 550 horsepower, were right there. After the breakaway occurred, and pilot Lancaster was called and reached the landing in a matter of seconds, he found that engines of the boat were already running as the night watchman had started the boat. It is a fair inference that the tugs could be started at once.

The significant thing about this thirty minute period is that respondent wholly failed to account for it, or what happened during that time. Of the three men known to have been present there, the whereabouts of two of them, Lawrence and Sivasky, was known to respondentthey could have been called, but they were not. Had they been called, more than one question as to matters highly important here...

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